Goldberg: We all have First Amendment rights

It has been a crazy couple of weeks, so you might have missed the news that The New York Times decided to operate like a super PAC.

Here’s what happened. The Times’ editorial board changed the bio on the opinion section’s Twitter account to inform the public that it was “temporarily taking over” the feed to lobby against the Senate GOP tax bill. The board then proceeded to tweet out the phone numbers of various Republican senators and implored the public to deluge their offices with phone calls, “to urge the Senate to reject a tax bill that hurts the middle class &the nation’s fiscal health.”

There was a lot of dudgeon and consternation about this among the ever-shrinking group of Americans who care about subtle distinctions in journalism. No one could remember another time when a major news outlet, particularly one as self-regarding as The New York Times, chose to nakedly politick in a way typical of MoveOn.org or the NRA.

Just to be clear: I think the Times stunt was foolhardy. But I don’t think it was immoral, illegal, unconstitutional or even unethical. Lots of things can be dumb without violating anything other than good judgment. It’s no secret that the Times’ editorial board is liberal. The text of its editorials and endorsements makes that plain pretty much every day.

What bothers me is that the Times’ editorial board is among the most vocal opponents of the Citizens United v. FEC decision.

In 2010, the Supreme Court struck down an election law that barred corporate and union “electioneering communications” within 30 days of a primary election and 60 days of a general election if those communications advocated for a specific candidate. The court held that “political speech does not lose First Amendment protection ‘simply because its source is a corporation.’”

“When Government seeks to use its full power,” Justice Anthony Kennedy wrote in the 5-4 decision, “including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.”

When the Obama administration was arguing the case, some of the justices asked the deputy solicitor general, Malcolm Stewart, if there would be any constitutional reason why books couldn’t be included in the ban. Stewart said sure, “if the book contained the functional equivalent of express advocacy” for a candidate and was supported, even slightly, with corporate money. Such advocacy, Stewart conceded, could amount to negatively mentioning a politician just once in a 500-page book put out by a mainstream publisher.

While both the Times and the Obama administration believed in sweeping government censorship during elections — or at least when most voters pay attention (i.e., right before Election Day) — they thought one group should be exempt from these prohibitions: newspapers and other media outlets. Never mind that pretty much every significant newspaper, television network and magazine, including the Times itself, is owned by a corporation. They simply wanted other corporations to be forced to shut up.

A super PAC that wants to put out a pamphlet or video or even a paid ad in the Times should be barred from doing so if it might influence voters. But The New York Times Company can write whatever it damn well pleases.

This always struck me as a back door to the licensing of journalists. After all, when you think about how this barmy notion would be enforced, bureaucrats at the Federal Election Commission would have to determine that a newsletter put out by, say, Planned Parenthood or the NRA wasn’t journalism, but an editorial by The New York Times was. The host of “The Daily Show” on Comedy Central — owned by Viacom — could mock a politician, but the owner of the Acme Nail Co. would have to shut up.

The problems with this are too lengthy to list in full. But two are worth mentioning. First, leaving it up to the FEC to decide what counts as journalism and what doesn’t is an insane amount of power to give political appointees during the run-up to an election.

Second, everyone has the same First Amendment rights. The Constitution holds that a free press is vital, but it doesn’t define the press as some kind of incumbent guild.

By acting like a run-of-the-mill super PAC, the Times is highlighting how capricious and dangerous such line-drawing really is. The Times had every right to do what it did — but so does everyone else, whether The Times likes it or not.

Jonah Goldberg is a fellow at the American Enterprise Institute and a senior editor of National Review. Contact him at goldbergcolumn@gmail.com.